[Federal Register Volume 75, Number 85 (Tuesday, May 4, 2010)]
[Proposed Rules]
[Pages 23654-23663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10317]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0031]
[MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List Hermes Copper Butterfly as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list Hermes copper butterfly 
(Hermelycaena [Lycaena] hermes) as a threatened or endangered species 
under the Endangered Species Act of 1973, as amended (Act) and to 
designate critical habitat. We find the petition presents substantial 
scientific or commercial information indicating that listing the Hermes 
copper butterfly may be warranted. Therefore, with the publication of 
this notice, we are initiating a status review to determine if the 
petitioned action is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial data and 
other information regarding this species. Based on the status review, 
we will issue a 12-month finding on the petition, which will address 
whether the petitioned action is warranted, as provided in section 
4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before July 6, 2010. Please note that 
if you are using the Federal eRulemaking Portal (see ADDRESSES section, 
below), the deadline for submitting an electronic comment is 11:59 p.m. 
Eastern Time on this date. After July 6, 2010, you must submit 
information directly to the Field Office (see FOR FURTHER INFORMATION 
CONTACT section below). Please note that we might not be able to 
address or incorporate information that we receive after the above 
requested date.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R8-ES-2010-0031 and then follow the instructions 
for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2010-0031; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Request for Information section below for more details).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, Carlsbad Fish and Wildlife Office, U.S. Fish 
and Wildlife Service, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 
92011, by telephone at 760-431-9440, or by facsimile to 760-431-9624. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on the 
Hermes copper butterfly from governmental agencies, Native American 
Tribes, the scientific community, industry, and any other interested 
parties. We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species and its 
habitat in the United States and Mexico.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Information on management programs for the conservation of 
Hermes copper butterfly.
    (4) The potential effects of climate change on this species and its 
habitat, what regional climate change models are available, and whether 
they are reliable and credible to use as step-down models for assessing 
the effects of climate change on this species and its habitat.
    (5) Additional information on the following locations in San Diego 
County, California, United States of America (U.S.A.) where the status 
of the species or level of the threat (such as fire), is unknown 
(petitioner location names used for the first time are in quotation 
marks if we added a location description):
    - approximately 3 miles (mi) (5 kilometers (km)) south of the City 
of El Cajon (``El Cajon (3 miles South)'');
    - the neighborhood of Flinn Springs in the City of El Cajon 
(``Flinn Springs (El Cajon)'');
    - Fairmont Canyon in the City of San Diego (``Fairmont Canyon'');
    - the community of Kearny Mesa (``Kearny Mesa'');
    - City of San Diego urban core area;
    - the Crosby property in the City of Rancho Santa Fe (``The 
Crosby'');
    - City of Spring Valley (``Spring Valley'');
    - community of Harmony Grove in the City of Escondido (``Harmony 
Grove'');
    - Steel Canyon near the community of Jamul (``Steel Canyon'');
    - Mission Valley in the City of San Diego (``Mission Valley'');
    - City of Poway near the intersection of Poway Road and State Route 
395 (``Poway Road/Highway 395'');
    - community of Dulzura (``Dulzura'');
    -- Deerhorn Valley near the community of Jamul (``Deerhorn 
Valley'');
    - area near Mt. Miguel; the community of Pine Valley (``Pine 
Valley'');
    - Big Rock Road in the city of Santee (``Santee's Big Rock 
Road;'');
    - community of Alpine (``Alpine'');
    - community of Miramar (``Miramar'');
    - Sycamore Canyon and Gooden Ranch in the City of Santee 
(``Sycamore Canyon and Gooden Ranch'');
    - Otay Mountain foothills (``Otay-Foothill area'');

[[Page 23655]]

    - 1 mi (1.6 km) west of Lake Hodges (``Lake Hodges (1 mile 
West)'');
    - Boulder Creek Road near the community of Descanso (``Boulder 
Creek Road'');
    - Harbison Canyon near the community of Crest (``Harbison 
Canyon'');
    - Little Cedar Creek near Otay Mountain (``Little Cedar Creek'');
    - San Marcos Creek in the City of San Marcos (``San Marcos 
Creek'');
    - Spring Canyon near the City of Santee (``Spring Canyon''); and
    - Sycuan Peak in the community of Jamul (``Sycuan Peak'').
    We would also like information for the following locations in Baja 
California, Mexico:
    - 12 mi (19 km) north of the city of Ensenada (``Ensenada (12 mi 
north)'');
    - 18 mi (29 km) south of Santo Tomas Valley (``Santo Tomas (18 mi 
south)'');
    - the community of Bajamar (``Bajamar''); and the community of 
Salsipuedes (``Salsi Puedes'')..
    (6) Information on U.S. Forest Service Land and Resource Management 
Plan revisions and the status of the species on U.S. Forest Service 
lands.
    Please include sufficient information with your submission (such as 
full references) to allow us to verify any scientific or commercial 
information you include.
    If, after the status review, we determine that listing Hermes 
copper butterfly is warranted, we intend to propose critical habitat 
(see definition in section 3(5)(A) of the Act), as per section 4 of the 
Act, to the maximum extent prudent and determinable at the time we 
propose to list the species. Therefore, within the geographical range 
currently occupied by Hermes copper butterfly, we request data and 
information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,''
    (2) Where these features are currently found, and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the Act.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding, will be available for you to review at 
http://www.regulations.gov, or you may make an appointment during 
normal business hours at the U.S. Fish and Wildlife Service, Carlsbad 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly review the status of the species, which is subsequently 
summarized in our 12-month finding.
    New species information received since the our previous 90-day 
finding (71 FR 44966, August 8, 2006) is limited to Marschalek and 
Deutschman's (2008) study of the effect of habitat edges on Hermes 
copper butterfly, new species observation locations, and fire data (see 
Species Information sections below). We received additional information 
from the petitioners in an email on March 5, 2010 (Evans 2010). We 
reviewed and evaluated the information they submitted, and did not find 
that it provided any new data relative to the status of the species or 
threats to it or its habitat. The petitioners submitted one piece of 
anecdotal species information that we did not already have in our 
files, a personal communication (cited ``D. Faulkner, V. Marquez-Waller 
pers. comm. on 4/16/08'') that a ``Ladybird beetle'' is a potential 
Hermes copper butterfly predator (Evans 2010 attachment, p. 8).
    For biological and other scientific information on Hermes copper 
butterfly, please refer to our previous 90-day finding published in the 
Federal Register on August 8, 2006 (71 FR 44966).

Previous Federal Actions

    On August 8, 2006, we published 90-day findings for both Hermes 
copper butterfly and Thorne's hairstreak butterfly in the Federal 
Register. The findings concluded that the petitions and information in 
our files did not present substantial scientific or commercial 
information indicating that listing Hermes copper (71 FR 44966) or 
Thorne's hairstreak butterflies (71 FR 44980) was warranted. (For a 
detailed history of Federal actions involving Hermes copper butterfly 
prior to the 2006 90-day finding, please see the August 8, 2006, 
Federal Register Notice (71 FR 44966)). On March 17, 2009, CBD and 
David Hogan filed a complaint for declaratory and injunctive relief 
challenging the Service's decision not to list Hermes copper butterfly 
and Thorne's hairstreak butterfly as threatened or endangered under the 
Act. In a settlement agreement dated October 23, 2009 (Case No. 09-0533 
S.D. Cal.), the Service agreed to submit new 90-day petition findings 
to the Federal Register by April 2, 2010, for Thorne's hairstreak 
butterfly, and by May 13, 2010, for Hermes copper butterfly. As a part 
of the settlement agreement, we agreed to evaluate the October 25, 
2004, petition filed by David Hogan and CBD, supporting information 
submitted with the petition, and information available in the Service's 
files, including information that has become available since the 
publication of the negative 90-day findings on August 8, 2006. If the 
90-day findings determine that listing

[[Page 23656]]

may be warranted, we agreed to submit a 12-month finding to the Federal 
Register by March 4, 2011, for Thorne's hairstreak butterfly, and by 
April 15, 2011, for Hermes copper butterfly. We published a 90-day 
finding in the Federal Register on April 5, 2010 (75 FR 17062) 
concluding that listing Thorne's hairstreak butterfly may be warranted. 
This notice constitutes our 90-day finding on the petition to list 
Hermes copper butterfly under section 4(b)(1)(A) of the Act.

Species Information

    Hermes copper butterfly is endemic to the southern California 
region, primarily occurring in San Diego County, California, and a few 
records of the species have been documented in Baja California, Mexico 
(Faulkner and Klein 2005, p. 23). The species inhabits coastal sage 
scrub and southern mixed chaparral (Marschalek and Deutschman 2008, p. 
98) and is dependent on its larval host plant, Rhamnus crocea (spiny 
redberry), to complete its lifecycle. Adult Hermes copper butterflies 
lay single eggs on R. crocea stems where they hatch and feed until 
pupation occurs at the base of the plant. Hermes copper butterflies 
have one flight period (termed univoltine) occurring in mid-May to 
early-July, depending on weather conditions and elevation (Faulkner and 
Klein 2005, pp. 23-24).
    Adult Hermes copper butterflies have been known to nectar (feed) in 
coastal sage scrub and chaparral ecosystems on Adenostema fasciculatum 
(chamise), Eriogonum fasciculatum (California buckwheat), Helianthus 
gracilentus (slender sunflower), Toxicodendron diversilobum (poison 
oak), and Hirshfeldia incana (short-podded mustard) and are rarely seen 
far from their nectar source or host plant (Faulkner and Klein 2005, 
pp. 24-25; Marschalek and Deutschman 2008, p. 102). Marschalek and 
Deutschman (2008) documented densities of Hermes copper butterflies on 
paired transects along edges and within the interior of host plant 
stands in rural areas. Their study results indicate Hermes copper 
butterfly densities are significantly higher near host plant stand 
edges than in the interior (Marschalek and Deutschman 2008, p. 102), 
suggesting that this single factor in natural areas may have a positive 
effect on species' density.
    Historical data indicate Hermes copper butterflies ranged from 
Fallbrook, California, in northern San Diego County to 18 mi (29 km) 
south of Santo Tomas in Baja California, Mexico, and from Pine Valley 
in eastern San Diego County to Lopez Canyon in western San Diego 
County. Range-wide species surveys have not been completed; therefore, 
it is difficult to assess the extent of occupation throughout the 
historical range.
Habitat
    According to Thorne (1963, pp. 143-144), Hermes copper butterflies 
are dependent on Rhamnus crocea (spiny redberry), a wide-ranging 
perennial coastal sage scrub and chaparral-associated species, as its 
larval host and for completion of its lifecycle. The range of R. crocea 
extends throughout coastal northern California, central western 
California, southwestern California, and into Baja California, Mexico, 
to an elevation of 3,280 feet (ft) (1000 meters (m)). The coastal sage 
scrub and chaparral ecosystems in San Diego County have been subject to 
multiple fires of various levels of severity (Keeley and Fotheringham 
2003, pp. 242-243; Faulkner and Klein 2005, p. 25). Rhamnus crocea and 
other coastal sage scrub or chaparral-associated species are adapted to 
intermittent fire, but researchers postulate that increased fire 
frequency may result in altered vegetation structure or type conversion 
throughout the range (Keeley and Fotheringham 2003, pp. 243-244; Keeley 
2004, pp. 2-3) and lead to a significant decline in Hermes copper 
butterfly habitat availability and suitability. Anecdotal evidence 
indicates Hermes copper butterflies require mature R. crocea to 
complete their lifecycle; therefore, increased fire frequency may 
reduce suitable host plant availability. However, no quantitative 
studies have occurred to test this hypothesis.
    For additional detailed species information on Hermes copper 
butterfly, please refer to our previous 90-day finding, which published 
in the Federal Register on August 8, 2006 (71 FR 44966).

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations in the Code of Federal Regulations (CFR) at 50 CFR 424, set 
forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence.
    In making this 90-day finding, we evaluated whether information on 
threats to Hermes copper butterfly, as presented in the 2004 petition 
and other information available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. In the sections 
that follow, we summarize information included in the 2004 petition and 
evaluate any new information in our files. For additional information 
regarding Hermes copper butterfly please refer to the previous 90-day 
finding published in the Federal Register on August 8, 2006 (71 FR 
44966).

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

    The petition, its appendices, and referenced documents discuss the 
following threats that are grouped under Factor A: development, 
wildfire, fire management techniques, and habitat fragmentation.
    The petition includes a table that lists Hermes copper butterfly 
populations and their presumed status at 56 occurrences throughout San 
Diego County and into Mexico. The table identifies 22 occurrences that 
were presumed lost in the 2003 Otay, Cedar, and Paradise fires; 6 
occurrences that were presumed lost to urban development; 8 occurrences 
that were known to be occupied and were mentioned in various 
environmental review documents; 2 occurrences with unknown locations 
and occupancy status; and 18 occurrences of unknown occupancy status 
(which include 4 in Baja California, Mexico).

Development

Information Provided in the Petition
    The petitioner stated that Hermes copper butterfly is vulnerable to 
extinction due to loss of populations and habitat loss as a result of 
urban development. The petitioner's table lists 6 locations that are 
presumed lost to development and 8 locations discovered as a result of 
surveys and environmental reviews for development projects. There are 
14 Hermes copper butterfly locations in the petitioner's table that do 
not include any indication of current occupancy status and an 
additional 2 occurrences with unknown locations and status.

[[Page 23657]]

Evaluation of Information Provided in the Petition and Available in 
Service Files
    At one of the 6 locations presumed lost to development (``Scripps 
Gateway'' at the southwest corner of Interstate 15 and Scripps Poway 
Parkway), the last Hermes copper butterfly observation was in 1996, and 
information in our files indicates that development has not impacted 
this area. Further investigation is needed to accurately determine the 
species' status at this location. The remaining 5 locations identified 
by the petitioner as lost to development were observed 45 or more years 
ago. We do not have more recent data on these specific locations and 
further investigation is needed to determine their status. However, 
information in our files indicates that some of the historical 
occurrences referenced by the petitioner (Kearny Mesa, Mission Valley, 
San Diego State College, and ``Suncrest'' in the community of Crest) 
have probably been impacted by urban development.
    Information in our files indicates that the status of Hermes copper 
butterfly at 4 (the Crosby property in Rancho Santa Fe, Spring Valley, 
Harmony Grove, and Steel Canyon) of the 8 locations discovered as a 
result of surveys and environmental reviews for development projects is 
currently unknown, and the butterfly is currently extant at the other 4 
locations (Skyline Truck Trail, Lyons Valley, Lawson Valley, and Jamul 
Highlands Road in the community of Jamul). Further investigation is 
needed to determine the status of Hermes copper butterfly at the Crosby 
property in Rancho Santa Fe, Spring Valley, Harmony Grove, and Steel 
Canyon.
    Our files do not contain more recent data for the Mexico 
occurrences cited in the petition, or data on the 2 unknown locations 
listed in the petition that are of unknown status (Mission Valley and 
Poway Road/Highway 395). Further investigation is needed to accurately 
determine the status of Hermes copper butterfly at those locations.
    Of the locations in the petitioner's table, information in our 
files indicates that the current status of 5 (Dulzura, Deerhorn Valley, 
Mt. Miguel, Pine Valley, and Santee's Big Rock Road) of the 14 
locations is unknown, and that 9 of the occurrences (Lyons Peak, Black 
Mountain, the community of ``Guatay,'' McGinty Mountain, Poway, 
``Robert's Ranch'' near the intersection of State Route 79 and 
Interstate 8, San Diego National Wildlife Refuge, Sycuan Peak, and 
``Wright's Field'' in the community of Alpine) are extant. Further 
investigation of Hermes copper butterfly occupancy at the Dulzura, 
Deerhorn Valley, Mt. Miguel, Pine Valley, and Santee's Big Rock Road 
locations is needed to determine the species' status at these 
locations.
    Information in our files indicates the Service is currently 
evaluating habitat conservation plans (HCPs) for the San Diego County 
Water Authority, Joint Water Agencies, North San Diego County, East San 
Diego County, and the City of Santee where Hermes copper butterfly may 
be included as a ``covered species'' in order to avoid conflict with 
planned future development. These HCPs are seeking coverage for take of 
Hermes copper butterfly throughout their plan areas, but the plans are 
not yet finalized (see ``D. The Inadequacy of Existing Regulatory 
Mechanisms'' section below for further discussion of approved HCPs). 
Additionally, the population of San Diego County is predicted to grow 
25.2 percent from 2000 to 2020 (California Department of Finance 2007), 
suggesting that urbanization pressure will continue to pose an 
increasing threat to remaining populations within the range of Hermes 
copper butterfly. Development on U.S. Forest Service lands may also 
pose a threat to Hermes copper butterflies. The species is considered 
an animal species-at-risk by the U.S. Forest Service; defined 
specifically, as an uncommon, narrow endemic, disjunct, or peripheral 
in the Cleveland National Forest (CNF) Land Resource Management Plan 
(LRMP)) area, with substantial threats to species persistence or 
distribution from Forest Service activities (USFS 2005a, p. 119). 
Information in our files indicates that one specific project is 
currently in the permitting and implementation phase (Sunrise 
Powerlink) and there are existing energy projects within the CNF 
(Winter 2010, pers. comm.) that may pose a threat to Hermes copper 
butterfly habitat. These projects may impact Hermes copper butterfly 
through direct loss or fragmentation of available habitat. Although no 
roads or facility development has been planned for the CNF within 
Hermes copper butterfly habitat that we are aware of at this time, 
future development or the maintenance of existing facilities may 
potentially be a threat to Hermes copper butterfly through 
fragmentation of habitat. Information in our files indicates that the 
existing electrical energy lines that pass through the CNF may pose a 
potential threat of wildfire through accidental ignition (see 
``Wildfire'' section below).
    In summary, we have evaluated information in our files and the 
petition and find there has been some loss of Hermes copper butterfly 
habitat due to development, and we conclude there is substantial 
information indicating Hermes copper butterfly listing may be warranted 
due to the threat of urban development.

Wildfire

Information Provided in the Petition
    The petitioner claims that Hermes copper butterfly is highly 
vulnerable to extinction due to the threat of fire. The petitioner 
claims that excessive human-induced fires threaten the species' 
survival, even on lands protected from development. The petitioner 
lists 22 locations that are presumed lost to fire (see analysis below 
for location descriptions).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in our files indicates that wildfire regimes throughout 
southern California have been changing for some time, and much of this 
change is attributed to human demography and population density. 
Specifically, fire frequency and season have increased throughout 
chaparral and coastal sage scrub ecosystems (Keeley and Fotheringham 
2003, pp. 239-242). Information in our files indicates that the 2003 
Otay, Cedar, and Paradise fires and the 2007 Harris, Poomacha, and 
Witch fires did impact some of the areas with documented Hermes copper 
butterfly occurrences (Alpine, Crestridge Ecological Reserve, the 
community of Descanso, Spring Valley, Miramar, Mission Trails Regional 
Park, Santee, Sycamore Canyon, Otay-Foothill area, and Rancho Jamul 
Ecological Reserve). However, the extent to which the habitat 
(chaparral and coastal sage scrub and, more specifically, the host 
plant Rhamnus crocea) was impacted is unknown and requires further 
investigation to accurately assess the impact to Hermes copper 
butterfly. Of the 22 locations identified in the petition as presumed 
lost to fire, 12 of these locations cited observation data dating back 
20 or more years. We do not have more recent data on Hermes copper 
butterfly at those locations, and their current status is unknown. Of 
the remaining 10 locations, we have data in our files indicating that 
Hermes copper butterfly is extant at 5 locations: Mission Trails 
Regional Park, Crestridge Ecological Reserve, Descanso, Rancho Jamul, 
and Santee (Fanita Ranch). The remaining 5 locations noted in the 
petitioner's table that potentially harbor Hermes copper butterfly 
would require further investigation to determine the species' status.

[[Page 23658]]

    Information in our files indicates that occurrences at 5 of the 22 
locations identified in the petition as lost to wildfire are currently 
extant. Further investigation is needed to determine the status of the 
species at the remaining 17 locations; however, with the expected 
increased frequency of fires, the species may not be able to recolonize 
habitat patches where they have been extirpated by fire. Additionally, 
information in our files indicates that approximately 80 percent of the 
Hermes copper butterfly habitat (Rhamnus crocea and other coastal sage 
scrub or associated-chaparral species) on CNF lands burned in the 2003 
and 2007 fires and only few of the historical locations on CNF are 
currently persisting (Winter 2010, pers. comm.)
    After reviewing the petition and information in our files, we find 
substantial information exists indicating that listing Hermes copper 
butterfly may be warranted due to the threat to Hermes copper butterfly 
habitat as the result of increased fire frequency or excessive wildfire 
relative to historic conditions.

Fire Management Techniques

Information Provided in the Petition
    The petitioner claims that prescribed burns used as fire management 
techniques are likely to impact the Hermes copper butterfly in a number 
of locations throughout the County of San Diego, including the 
Cleveland National Forest (CNF). The petitioner asserts that the County 
has relied on excessive brush clearing around homes and communities for 
fire protection and that the CNF has aggressively pursued prescribed 
burning as a vegetation management tool. The petitioner claims that 
prescribed burns are likely to reduce the survival of Hermes copper 
butterflies.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The County of San Diego's Zoning and Ordinance regulations and 
recommendations indicate that lands within the County of San Diego are 
required to have a defensible space around homes and structures, which 
may impact Hermes copper butterfly habitat; however, emphasis is placed 
on replacing flammable roofing material with fire-resistant shingles, 
planting fire-resistant landscape vegetation, using fire-resistant 
native plant species, avoiding invasive nonnative species in 
landscaping, and implementing other effective conservation-oriented 
fire management techniques (County of San Diego 2006, p. 2; The Fire 
Safe Council of San Diego County 2009, p. 1). Information available to 
us at this time does not support the petitioner's claim that the County 
of San Diego is rejecting conservation-oriented rural planning or 
emphasizing prescribed burns. Although prescribed burning is conducted 
in potential Hermes copper butterfly habitat on Marine Corps Air 
Station Miramar, neither the petition nor information in our files 
indicates that prescribed burning is being conducted in occupied Hermes 
copper butterfly habitat.
    According to the U.S. Forest Service's 2005 final environmental 
impact statement for land management plans in the Angeles, Cleveland, 
Los Padres and San Bernardino National Forests, Hermes copper butterfly 
is an animal species-at-risk due to prescribed burns or fuel reduction 
projects in the CNF (USFS 2005(a), p. 175). The CNF's conservation 
strategy for the next 3 to 5 years states their intention to monitor 
Hermes copper butterfly in burned areas and to prevent and suppress 
fires throughout the habitat of Hermes copper butterflies (USFS 
2005(b), pp. 88-89). To further fire prevention efforts, the CNF is 
creating fuel breaks adjacent to homes and other developed areas to 
prevent spread of wildfire from developed areas onto CNF lands. 
Information in our files also indicates that CNF is not conducting 
large scale prescribed burns, but is actively engaged in fuel reduction 
throughout the forest (Winter 2010, pers. comm.).
    After reviewing information in our files and in the petition, we do 
not find substantial information to indicate that listing of Hermes 
copper butterfly may be warranted due to the use of prescribed fire as 
a fire management technique either in the County of San Diego or on the 
CNF. However, we will further investigate the potential threat of 
prescribed fires in our status review for this species.

Habitat Fragmentation

Information Provided in the Petition
    The petitioner claims habitat (chaparral and coastal sage scrub) 
for Hermes copper butterfly is being fragmented through various 
mechanisms (i.e., urban development, fire, type-conversion, and roads) 
and that this threatens the species' survival. The petitioner's claims 
include the following:
    (1) Habitat fragmentation is reducing the overall area of habitat 
available for the Hermes copper butterfly;
    (2) Host plant, Rhamnus crocea, population distributions have been 
fragmented throughout the range of Hermes copper butterfly by urban 
development, fire, vegetation type-conversion, road construction, and 
other factors; and
    (3) Fragmentation leads to expansion of edge habitat that stresses 
Hermes copper butterfly populations.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Habitat fragmentation increases the ratio of edge to interior 
habitat area, creating a boundary around existing suitable habitat 
where the surrounding area is unsuitable for the particular organism. 
This process isolates the habitat patch from other surrounding suitable 
habitat patches and, depending on the movement dynamics of a particular 
organism, this habitat separation (or fragmentation) and isolation may 
result in increased extirpation risk (Bell et al. 1991, pp. 1-438).
    Information in our files and in the petition indicates that habitat 
for Hermes copper butterfly has been fragmented by wildfire and urban 
development. Comparison of Hermes copper butterfly and host plant 
distribution data with satellite imagery indicates wildfire causes 
short-term fragmentation of habitat, and much historical habitat has 
been fragmented by development. Additionally, the extent of habitat 
fragmentation on USFS lands has not been quantified, but information 
available at this time indicates that there has been significant loss 
and possible patchy distribution of the habitat that is remaining 
(Winter 2010, pers. comm.). Specific impacts of habitat fragmentation 
on Hermes copper butterfly have not been documented and require further 
investigation. The smaller and more isolated butterfly populations are, 
the less likely its habitat patches will be recolonized following 
extirpation due to wildfire or another catastrophic event. Given that 
some locations that historically harbored Hermes copper butterflies 
have been impacted and the existence of a possibility of habitat 
fragmentation, further investigation is necessary to determine the 
implications of these findings to Hermes copper butterfly's 
persistence.
    In summary, we evaluated the petition and information in our files 
and find substantial information has been presented in the petition or 
is available in our files to indicate listing Hermes copper butterfly 
may be warranted due to the present or threatened destruction, 
modification, or curtailment of the species' habitat or range. In 
particular,

[[Page 23659]]

we find that fires that have occurred in the north and south of the 
species' range and development (including urban development and 
activities on CNF lands) through the center of its distribution may 
have impacted the habitat (host plant and nectar sources) through loss 
or fragmentation and, in turn, may threaten the species' existence.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

Information Provided in the Petition
    The petitioner claims at least one commercial operation may impact 
Hermes copper butterfly. According to the petition, a company called 
``Morningstar Flower and Vibrational Essences'' markets a Hermes copper 
``butterfly essence'' through their website. The petitioner states it 
is unclear how these essences are manufactured or obtained; however, 
the petition states that flower essences are produced by soaking the 
material in water, alcohol, or vinegar. Additionally, the petition 
states that over-collection may impact the Hermes copper butterfly. The 
petitioner claims that a female Hermes copper butterfly was worth up to 
$20.00 in 1986.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Neither the petition nor information available in our files 
indicates that commercial use threatens the existence of Hermes copper 
butterfly. Information in our files indicates that no Hermes copper 
butterflies, whole or physical parts, are used in the process of making 
these butterfly essences (Morning Star Essences, pers. comm., 2006). We 
are unaware of any other business that markets and sells ``butterfly 
essences,'' and we have no information to indicate this activity 
threatens Hermes copper butterfly.
    Additionally, there is no information in our files or the petition 
to indicate over-collection is a threat to Hermes copper butterfly. We 
have information in our files that on June 26, 2004, two different 
advertisements on the Internet offered specimens of Hermes copper 
butterfly for sale for approximately $152.00 (Martin, pers. comm., 
2004). However, there is no evidence that trade or collection directly 
contributes, or is a substantial threat, to the species.
    After a review of information in our files and in the petition, we 
do not find substantial information to indicate that listing Hermes 
copper butterfly may be warranted due to overutilization for 
commercial, recreational, scientific, or educational purposes. However, 
we will further investigate the potential threat of overutilization for 
commercial, recreational, scientific, or education purposes in our 
status review for this species.

C. Disease or Predation

Disease

    There was no information provided in the petition nor do we have 
any information in our files to indicate that disease is a threat to 
the Hermes copper butterfly.

Predation

Information Provided in the Petition
    The petitioner states that species experts suspect predatory 
insects, and parasitic insects, spiders, and possibly birds, prey upon 
Hermes copper butterfly. Additionally, the petitioner asserts that the 
harmful effects of otherwise normal predation or parasitism might be 
exacerbated by population reduction from excessive fires. We received 
additional information from the petitioner in an email on March 5, 2010 
(Evans 2010). The petitioner submitted one piece of anecdotal species 
information we did not already have in our files, a personal 
communication (cited ``D. Faulkner, V. Marquez-Waller pers. comm. on 4/
16/08'') that a ``Ladybird beetle'' is a potential Hermes copper 
butterfly predator (Evans 2010 attachment, p. 8).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Faulkner and Klein (2005, p. 26) state that no documentation exists 
of parasitism or predation on Hermes copper butterfly, and we have no 
information in our files that suggests parasitism or predation is a 
threat to the species' existence. The petitioner did not provide 
information to support the hypothesis that predation or parasitism may 
exacerbate population reduction as result of fire or any specific 
information that ``Ladybird beetles'' may be a significant predator, 
and we have no information in our files to support either of these 
claims.
    After a review of information in our files and in the petition, we 
do not find substantial information to indicate that listing Hermes 
copper butterfly may be warranted due to disease or predation. However, 
we will further investigate the potential threat of disease and 
predation in our status review for this species.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition states very few regulatory mechanisms are in place 
that afford Hermes copper butterfly conservation; however, the 
petitioner states the following mechanisms may provide some 
conservation:
    (1) The California Environmental Quality Act (CEQA);
    (2) National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.);
    (3) U.S. Forest Service management;
    (4) San Diego Multiple Species Conservation Plan (MSCP);
    (5) Biological Mitigation Ordinance (BMO);
    (6) County of San Diego Resource Protection Ordinance (RPO); and
     (7) City and County of San Diego open space parks.
    The petitioner states that although the measures listed above 
exist, they have not proven effective in reducing what the petitioner 
believes are the primary threats to Hermes copper butterfly survival 
(urban development, wildfire, and habitat degradation).

California Environmental Quality (CEQA) and National Environmental 
Policy Acts (NEPA)

Information Provided in the Petition
    The petitioner claims the Service has previously provided extensive 
discussion of the inadequacy of CEQA to protect imperiled species, 
identifying several listings in the Federal Register (62 FR 2318, 
January 16, 1997; 62 FR 4935, February 3, 1997; 61 FR 25829, May 23, 
1996; 69 FR 47236, August 4, 2004). The petitioner did not provide 
information regarding NEPA.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    CEQA and NEPA provide some protection for Hermes copper butterfly. 
CEQA (Public Resources Code, Sections 21000-21178, and Title 14 CCR, 
Section 753, and Sections 15000-15387) requires public agencies to 
disclose environmental impacts of a project on native species and 
natural communities during the land use planning process and to 
identify and impose mitigation measures to reduce project impacts to a 
less than significant level unless the agency makes a finding of 
overriding consideration. Through this process, CEQA ensures that 
proposed project effects on Hermes copper butterflies will be 
considered and, generally, reduced or mitigated. NEPA requires Federal 
agencies to disclose the significant impacts of a proposed action but 
does not require that such impacts be

[[Page 23660]]

reduced to a level of insignificance. These statutes provide some 
protection for Hermes copper butterfly and its habitat.

U.S. Forest Service (USFS) Management

Information Provided in the Petition
    The petitioner claims U.S. Forest Service regulations and 
management activities appear to provide few protections to Hermes 
copper butterfly. The petitioner states that, aside from monitoring 
survey results by others, there is no indication that the Cleveland 
National Forest (CNF) is engaged in the conservation of Hermes copper 
butterfly. Additionally, the petitioner states that Hermes copper 
butterfly is not recognized as a ``sensitive species'' by the U.S. 
Forest Service, which would provide monitoring efforts to track the 
species' status and some protection from harmful projects. However, the 
petitioner states that even if the U.S. Forest Service recognized 
Hermes copper butterfly as a ``sensitive species,'' proactive 
conservation activities would not be implemented until the species 
receives protection from the Act.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in our files does support the petitioner's claim that 
inadequacy of U.S. Forest Service management may be a contributing 
factor impacting the survival of the Hermes copper butterfly. According 
to the 2005 LRMP currently in place for CNF, Hermes copper butterfly is 
considered an animal species-at-risk by U.S. Forest Service but is not 
currently recognized as a ``sensitive species'' by the U.S. Forest 
Service. Because the butterfly is not currently identified as a 
``sensitive species,'' preventative measures by the U.S. Forest Service 
to avoid impacts from development, excessive wildfire often as a result 
of development projects, and habitat fragmentation (see Factor A 
discussion) to Hermes copper butterflies or their habitat are not 
required. However, information in our files indicates that the U.S. 
Forest Service is taking some management actions to protect and 
conserve this species. The following management efforts are being 
implemented or are planned on U.S. Forest Service lands leading to the 
conservation and protection of Hermes copper butterfly:
    (1) All historical locations have been surveyed;
    (2) Re-vegetation of Eriogonum fasciculatum (California buckwheat), 
an important nectar source, is planned for the Barber Mountain area 
where most of this nectar source was burned in the 2007 fire; and
    (3) The Sunrise Powerlink project was modified to protect remaining 
Hermes copper butterfly habitat on Barber Mountain (Winter 2009, pers. 
comm.).
    The ``sensitive species'' list is currently being updated by U.S. 
Forest Service and will likely include Hermes copper butterfly (Winter 
2009, pers. comm.); however, this is a future action that is not 
certain.
    In summary, although U.S. Forest Service has undertaken or is 
planning some preventative measures to avoid impacts to Hermes copper 
butterfly and its habitat, the failure of the CNF to identify Hermes 
copper butterfly as a sensitive species under its LRMP suggests that 
current regulation may not be adequate to protect the species and its 
habitat from future development, related impacts, such as habitat loss, 
(fragmentation and excessive wildfire), and similar impacts resulting 
for the maintenance of existing facilities and roads on U.S. Forest 
Service lands. The conservation measures and preventative actions 
listed above that the U.S. Forest Service has implemented or is 
planning to implement on the CNF are not required and do not prohibit 
activities that may impact Hermes copper butterfly or its habitat.

San Diego Multiple Species Conservation Plan (MSCP), the Biological 
Mitigation Ordinance, and the County of San Diego Resource Protection 
Ordinance

Information Provided in the Petition
    The petitioner states that:
    (1) Hermes copper butterfly is not recognized as a ``covered 
species'' under the County of San Diego's Subarea Plan under the MSCP 
(MSCP 1998);
    (2) The MSCP cannot provide the necessary management to benefit the 
species because no species-specific management is planned, described, 
or required; and
    (3) The MSCP can benefit Hermes copper butterfly only in the event 
of collaterally beneficial conservation activities for other species 
and habitats.
    The petitioner claims the informal treatment of Hermes copper 
butterfly by the MSCP provides few conservation benefits. The 
petitioner also states that the MSCP identifies only three sites where 
the butterfly occurs in the Metro-Lakeside-Jamul Segment of the County 
of San Diego Subarea Plan. The petitioner claims that conservation 
under the County of San Diego Subarea Plan is presumably provided under 
the Biological Mitigation Ordinance (BMO) that applies to more species 
than those covered under MSCP, and establishes mitigation ratios and 
conditions for impacted species within the County. However, the 
petitioner states that the BMO only protects those ``non-covered'' 
species if they are inside the County of San Diego Subarea Plan's 
Biological Resources Core Areas, and even then, the County of San Diego 
Subarea Plan does not require avoidance of important Hermes copper 
butterfly populations, habitat, or dispersal corridors. Moreover, the 
BMO would not improve the species' status. The petitioners also claim 
the County of San Diego Resource Protection Ordinance (RPO), which 
imposes controls on development of wetlands, floodplains, steep slopes, 
sensitive biological habitats, and historical sites outside the 
boundaries of the County of San Diego Subarea Plan, does not directly 
protect species or impose any species-specific management efforts. 
Rather, the RPO attempts to minimize the impacts of urban development 
on habitat. The petition states that the County of San Diego asserts 
these regulatory measures will still contribute to conservation of the 
Hermes copper butterfly; however, the petitioner noted that the County 
of San Diego Subarea Plan provides only inadvertent protection to the 
species, which the petitioner believes is insufficient.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in our files indicates that Hermes copper butterfly is 
not a ``covered species'' under the County of San Diego Subarea Plan 
(Service 1998, p. 2). Although not a ``covered species'' under the 
plan, the Hermes copper butterfly and its habitat receive some indirect 
protection through land use restrictions applicable to lands within the 
County of San Diego under the BMO (in effect since 2004) and the RPO. 
The BMO, which applies to areas in the county covered by the County's 
approved MSCP Subarea Plan, implements preserve design criteria for 
urban development and provides for conservation of sensitive biological 
habitats, such as chaparral, coastal sage scrub, and woodland, by 
establishing mitigation ratios and project development conditions. 
Therefore, the BMO may provide some protection and mitigation for 
larval and adult habitat for the Hermes copper butterfly within the 
County of San Diego MSCP Subarea Plan to the extent that habitat occurs 
within sensitive biological habitats regulated by the BML. The RPO, 
which applies to the entire County of San Diego (and not solely outside 
the

[[Page 23661]]

boundaries of the MSCP as stated in the petition), provides protection 
and requires mitigation for impacts to Hermes copper butterfly habitat 
that is deemed sensitive habitat land or occurs on steep slopes. The 
County of San Diego Guidelines for Determining Significance and Report 
Format and Content Requirements for Biological Resources (County of San 
Diego 2009, p. 7) includes guidance that habitat occupied by Hermes 
copper butterfly should be considered sensitive, thus triggering 
species-based mitigation and avoidance to the maximum extent possible 
under the RPO. Hermes copper butterfly is included on the County's 
Group 1 Sensitive Animals List because it is considered a rare endemic 
species and is on the State of California's special animal taxa list 
(County of San Diego 2009, p. 50; CDFG 2009). Therefore, the MSCP, BMO, 
and RPO provide variable protection to the Hermes copper butterfly 
habitat depending on the specific regulatory mechanism and habitat 
location.

City of San Diego and County of San Diego Open Space Parks

Information Provided in the Petition
    The petition states that remaining Hermes copper butterfly 
populations are not necessarily protected from edge effects, wildfire, 
or potential park development by the nature of their location on the 
following open space park lands managed by the City or County of San 
Diego: Mission Trails Regional Park, McGinty Mountain, and Black 
Mountain. The petitioner claims Hermes copper butterfly cannot directly 
benefit from these open spaces without formal protection.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in our files does not support the petitioner's claim 
that lack of specific management plans or area-specific management 
directives for open space parks threatens the persistence of Hermes 
copper butterfly. Furthermore, McGinty Mountain is part of the San 
Diego National Wildlife Refuge and is not managed by the City or County 
of San Diego. Although there are no formal management plans in our 
files written by the City or County of San Diego for these specific 
parks, it appears Hermes copper butterfly is persisting at all three 
locations listed in the petition. Information in our files indicates 
that:
    (1) Hermes copper butterfly has been observed historically at 
Mission Trails Regional Park since the late 1950s through current 
surveys in 2009;
    (2) Observations at McGinty Mountain were first reported in the 
1980s and the butterfly has been repeatedly observed since; and
    (3) The City of San Diego's website on the Black Mountain Open 
Space Park states that all plants and animals found within the park are 
protected and must not be harmed or removed (City of San Diego 2009); 
Hermes copper butterflies were observed on Black Mountain in 2004.
    There are few known occurrences of Hermes copper butterflies in 
City or County open space parks. Although there is no formal regulation 
or management specifically for Hermes copper butterflies on these 
lands, we are not aware of any evidence to suggest that the absence of 
such regulation and management poses a threat to the Hermes copper 
butterfly or its habitat.
    In summary, we have evaluated the petition and information in our 
files and find substantial information exists to indicate that listing 
the Hermes butterfly may be warranted because existing regulatory 
mechanisms may not adequately address the threats of habitat loss and 
fragmentation posed by development related impacts, including human-
induced, excessive wildfire (see Factor A discussion). The regulatory 
mechanisms discussed above provide a patchwork of protection for Hermes 
copper butterfly and its habitat; however, the cumulative protection 
provided by these mechanisms may not adequately remove the threat of 
habitat loss and fragmentation resulting from development. We do not 
believe that the observed increase in frequency of natural wildfires 
recently observed in Hermes butterfly habitat is a threat amenable to 
reduction or elimination by regulatory mechanisms. However, we will 
further investigate the effectiveness of existing regulatory mechanisms 
to protect the Hermes copper butterfly and its habitat from wildfire 
and other potential threats in our status review of the species.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petition, its appendices, and referenced documents discuss the 
following threats that are grouped under Factor E: wildfire, 
vulnerability of small and isolated populations, and global climate 
change.

Mortality Due to Wildfire

Information Provided in the Petition
    The petitioner states that the Hermes copper butterfly cannot 
escape fire. The petitioner states that: (1) Pupae and larvae are 
likely killed when fire burns Rhamnus crocea and other nearby coastal 
sage scrub or chaparral vegetation; (2) adults are likely killed by 
fire due to their habit of remaining close to their host plant; and (3) 
adults are likely outpaced by an approaching fire. The petition claims 
excessive fires over the last several decades have reduced Hermes 
copper butterfly population numbers and disrupted metapopulation 
dynamics and stability.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Fire causes direct mortality of Hermes copper butterflies, and is 
reported to have extirpated a population in habitat where they were not 
observed again until 18 years after the fire (Faulkner and Klein 2005, 
pp. 24-26). The persistence of Hermes copper butterfly after the 2003 
fires was at first questioned because much of the fire footprint 
appeared to cover known locations occupied by the species (Betzler et 
al. 2003, p. 12). However, information in our files indicates Hermes 
copper butterfly persisted in reduced numbers at sites within the 2003 
and 2007 fire footprints (such as Mission Trails Regional Park, 
Wildwood Glen Lane in CNF, Barber Mountain, and Potrero Road). Given 
the described negative impacts of fire on Hermes copper butterfly 
populations (Faulkner and Klein 2005, pp. 24-26), it is likely the 
species' existence is threatened by wildfires. Additional surveys and 
monitoring are needed to determine the survival and recolonization rate 
following fire to address the petitioner's claim of a direct mortality 
extinction threat due to high fire frequency. After reviewing the 
petition and information in our files, we find substantial information 
exists indicating that listing the Hermes copper butterfly may be 
warranted due to the threat of mortality from wildfire.

Vulnerability of Small and Isolated Populations

Information Provided in the Petition
    The petitioner asserts that endemic taxa such as Hermes copper 
butterfly are considered more prone to extinction than widespread 
species due to their restricted geographical range and that population 
isolation is exacerbated by habitat fragmentation (see Factor A above 
for discussion of habitat fragmentation). According to the petition, 
the common factors that increase the vulnerability of small and 
isolated populations to extinction are demographic fluctuations,

[[Page 23662]]

environmental stochasticity (random events), and reduced genetic 
diversity.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Small population size, a low number of populations, or population 
isolation are not necessarily factors that may threaten a species 
independently. Typically, it is the combination of small size and 
number and isolation of populations in conjunction with other threats 
(such as the present or threatened destruction, modification, or 
curtailment of the species' habitat or range) that may significantly 
increase the probability of species' extinction.
    Information in our files indicates large annual fluctuations in 
observed abundance of adult butterflies are common throughout this 
butterfly's range. Adult butterfly abundance may fluctuate 
approximately two orders of magnitude from one year to the next and may 
be correlated with rainfall levels (Klein and Faulkner 2003, p. 96); 
however, it is not clear how adult observations correlate with 
abundance of all life stages, including diapausing (quiescent) stages. 
Also, much uncertainty exists regarding the species' distribution 
because the range of its host plant, Rhamnus crocea, extends well 
beyond the known range of the butterfly and surveys have not been 
conducted throughout the host plant's range (especially inland San 
Diego County and northwestern Baja California, Mexico).
    Population isolation and fragmentation may render smaller 
populations more vulnerable to stochastic extirpation. Small 
populations and isolation could also subject the butterfly to genetic 
drift and restricted gene flow that may decrease genetic variability 
over time and could adversely affect species' viability (Allee 1931, 
pp. 12-37; Stephens et al. 1999, pp. 185-190; Dennis 2002, pp. 389-
401). Information in our files indicates that reduced adult Hermes 
copper butterfly densities are present in burned areas (see Factor A 
discussion on Wildfire) and new occurrences (such as at Potrero Road, 
north Lyons Valley, and west Japatul Valley) have been documented after 
the 2003 and 2007 fires. Sufficient distribution, population structure, 
genetic, or demographic information about the species to determine the 
effect of isolation and small population size is currently unavailable. 
However, information in our files indicates that the habitat area and 
range that the species inhabits have been reduced and fragmented and 
the status of some historical occurrences remains unknown after recent 
fires; therefore, stochastic extinction as a result of restricted 
geographical range or population isolation may pose a significant 
threat to the species.

Global Climate Change

Information Provided in the Petition
    The petitioner asserts that butterflies (in general) are threatened 
by global climate change and are specifically sensitive to small 
changes in microclimate, such as fluctuations in moisture, temperature, 
or sunlight. According to the petition, studies of Edith's checkerspot 
butterfly (Euphydryas editha) have shown that whole ecosystems may move 
northward or shift in elevation as the Earth's climate warms (Parmesan 
and Galbraith 2004, p. 9).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We recognize recent evaluations by Parmesan and Galbraith (2004, 
pp. 1-2, 29-33) that indicate that whole ecosystems may be shifting 
northward and upward in elevation, or are otherwise being altered by 
differing climate tolerance among species within a community. 
Additionally, we recognize that climate change is likely to cause 
changes in the arrangement and community composition of occupied 
habitat patches. Current climate change predictions for terrestrial 
areas in the Northern Hemisphere indicate warmer air temperatures, more 
intense precipitation events, and increased summer continental drying 
(Field et al. 1999, pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 
2005, p. 6; Intergovernmental Panel on Climate Change (IPCC) 2007, p. 
11). However, predictions of climatic conditions for smaller 
subregions, such as California, remain less certain. Thus, the 
information currently available in our files on the effects of global 
climate change, such as increasing temperatures or moisture, require 
further analysis and comparison with local climate models and other 
literature to make sufficiently certain estimates of the likely 
magnitude of predicted effects on Hermes copper butterfly. Given the 
current uncertainty, we find that information in our files does not 
provide substantial information suggesting that global climate change 
may be a factor that threatens Hermes copper butterfly. We will further 
investigate this potential threat to Hermes copper butterfly in our 
status review of the species.
    In summary, we find the petition and information in our files 
provide substantial information indicating that listing Hermes copper 
butterfly may be warranted due to other natural or manmade factors 
affecting the species' continued existence. Specifically, we find that 
mortality due to wildfire and restricted geographical range or 
population isolation may pose significant threats to the species.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we determine that the petition presents substantial scientific or 
commercial information indicating that listing the Hermes copper 
butterfly may be warranted. This finding is based on information 
provided under Factor A (present or threatened destruction, 
modification, or curtailment of the species' habitat or range), Factor 
D (the inadequacy of existing regulatory mechanisms), and Factor E 
(other natural or manmade factors affecting the species' continued 
existence). Because we find that the petition presents substantial 
information indicating that listing the Hermes copper butterfly may be 
warranted, we are initiating a status review to determine whether 
listing the Hermes copper butterfly under the Act is warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.
    The petitioner requested that critical habitat be designated for 
this species. If we determine in our 12-month finding that listing 
Hermes copper butterfly is warranted, we will address the designation 
of critical habitat at the time of the proposed rulemaking. The 
proposed rulemaking may be published concurrently with the 12-month 
finding or at a later date.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Carlsbad Fish and 
Wildlife

[[Page 23663]]

Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are staff members of the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 19, 2010.
Daniel M. Ashe,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2010-10317 Filed 5-3-10; 8:45 am]
BILLING CODE 4310-55-S